Historically, there has been an effort in Anglo Saxon law to require people to utilize land and improve it. While perhaps politically incorrect in this era of environmental protection, the theory of the past thousand years of law was to avoid the bane of absentee landowners who owned but did not economically exploit the land thus left it lying vacant and “useless.” One need only think of the Lords enjoying the pleasures of the cities while their land lay fallow in a starving countryside despite small landowners who were desperate for land, to understand how the concept of “adverse possession” was seen as an effort to equalize ownership of land in ages past.
The United States took the concept from England and thousands of cases later, it is a settled and statutory part of the law in every State with the possible exception of Louisiana. Essentially, if one occupies someone else’s land without legal objection from that person for a specified period of time, and does so openly and under a claim of exclusive possession, one can end up owning that land despite later protests and, indeed, lawsuits, of the title holder. You get the land by being there.
But the law is more complex than that and this Article shall describe the basic law so that both owners…and those seeking to oust owners…can understand the procedures and rules that apply to adverse possession in California.
Statutory Basis of Adverse Possession:
The key to adverse possession is “open and notorious” possession of property without the title holder taking steps to remove you for a stated period of time. In California, the Legislature has set out the precise criteria for what must be done in order to claim property by adverse possession. The law is found in the Code of Civil Procedure at Section 325 and is quoted in full below (as of January, 2011.)
325. (a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:
(1) Where it has been protected by a substantial enclosure.
(2) Where it has been usually cultivated or improved.
(b) In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.
Each criteria stated in the statute is essential. As the courts have explained:
Under California law, to establish adverse possession, a claimant must allege and prove:
"(1) possession under claim of right or color of title;
(2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner;
(3) possession which is adverse and hostile to the true owner;
(4) continuous possession for at least five years; and
(5) payment of all taxes assessed against the property during the five-year period. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305; see also Gilardi v. Hallam (1981) 30 Cal.3d 317, 321 (Gilardi); Code Civ. Proc. § 325.)."
As a general matter, the doctrine is strictly construed and the burden of proving all of the essential elements is on the party seeking to assert the right to title. (See Landini v. Day (1968) 264 Cal.App.2d 278, 281-282; Nelson v. Robinson (1941) 47 Cal.App.2d 520, 528.) Each of the elements must be proved, and the failure to pay taxes on the land to which title is claimed is fatal. (Gilardi, supra, at pp. 326-327; Raab v. Casper (1975) 51 Cal.App.3d 866, 878.
To prove possession, you must do such things as mark off the property in some obvious way to show the area you are claiming and use or improve the property continuously for a minimum of five years. Recent changes to the law make it clear that taxes must be “timely” paid, meaning that you cannot wait until the end of the five year period and then pay any delinquent taxes from previous years, and that proof of the payment of those taxes must be by certified records of the county tax collector.
Many authorities indicate that one should not view adverse possession as seizing the land, but should view it as the title owner FAILING to take legal action to protect the ownership of the land. In that view, adverse possession is really a form of statute of limitations in which a plaintiff (the title owner) is barred from taking legal action against a trespasser because the plaintiff waited too long.
As one of the oldest forms of land disputes, there are thousands of cases dealing with adverse possession in almost every jurisdiction of Anglo Saxon law. Most of the cases deal with the factual question as to what action constitutes de facto notice to the title holder that adverse possession is being claimed. (Typical situations: a fence is built but three years later is half demolished; the adverse possessor only occasionally visits the property; the title holder showed up once a year and the adverse possessor was away at work and the fence not in repair, etc, etc.)
It is a question of fact for the Trier of fact to determine if the criteria above were met and were met for the full five years or longer. Thus the average trial centers around proof that the criteria was met, with the title holder bringing in witnesses to claim that the possession was not continuous or obvious and the adverse possessor doing the opposite.
The law requires the adverse possessor to prove such criteria were met AND THE PRESUMPTIONS ARE AGAINST THE ADVERSE POSSESSOR. One of the leading cases discussed the presumption as follows:
Defendants asserted prejudice due to the intervening deaths of three likely witnesses. But all presumptions favor the record owner of the property, and all doubts are resolved against the adverse possessor, so that any prejudice caused by the loss of these witnesses' testimony would work against plaintiff, not defendants. (26 C.A.4th 192, 193.)
Or, as stated in 1 Cal. Jur. 636, sec. 95, "Inasmuch as the doctrine of adverse possession is to be construed strictly, and such possession cannot be made out by inference, but only by clear and positive proof, the burden of proving all the essential elements of an adverse possession or prescriptive title is upon the party relying upon it."
If you are considering claiming adverse possession, it is thus vital to move as quickly as you can after you have met all statutory criteria so you can prove your case before witnesses disappear. But you do not have to bring the case: it is up to the title holder to force you out, not vice versa. "California law does not require a plaintiff to bring an action to perfect his or her claim of adverse possession. Rather, it is the record owner -- not the intruder -- who must bring an action within five years after adverse possession commences in order to recover the property." (26 C.A.4th 191, citing C.C.P. 318, text, § 114.)
Of course, the danger of waiting is that it makes proof of continuous adverse possession for the full five years more difficult because witnesses and other evidence might disappear. Interestingly, changes to the law that took effect in 2011 make it easier to prove continuous possession since the law now requires that the adverse possessor prove they timely paid the taxes by introducing records certified by the county tax assessor. At the same time, by clarifying that the taxes need to be timely paid, it makes a claim of adverse possession harder to accomplish.
Note that all taxes assessed against the property must have been paid by the party claiming adverse possession, and they must have been paid in a timely fashion for the full five years. If you are thinking of claiming property by adverse possession, but have not timely paid the taxes, the court will be constrained from allowing you to take the land.
Each individual considering the particular situation must carefully analyze the facts and gather evidence of possession even before the five years is past. One client of this office who was hoping to obtain adverse possession of his polluting neighbor’s lot took pictures of the property with his improvements annually (a newspaper with a date clearly visible in the picture) to establish such possession. Another client, this time a title holder, was able to invalidate such possession by having a picture, taken by chance, which showed the uninhabited property with an automobile with a license plate with a date on it during the period supposedly claimed by the adverse possessor.
Some examples of the problems inherent in claiming ownership via adverse possession are illustrated in Getting the Land for Free Was Not Free and Adverse Possession and Glory.
What Title Do You Get?
The reader is advised to read our article Real Estate Ownership and Transactions in the United States. Adverse possession creates a new beginning to the chain of title. In effect, title to the land is starting title over again.
Adverse possession is a means of acquiring title to property, after lapse of time, by continued possession. (See C.C. 1007; see 7 Powell § 1012; 3 Am.Jur.2d, Adverse Possession § 1 et seq.; 1 Ogden § 4.6 et seq.; 3 Miller & Starr § 19:1 et seq.; 1959 A.S. 480; 1963 A.S. 511; 1964 A.S. 559; 1967 A.S. 450; 18 A.L.R.3d 678 [adverse possession by government]; 1 P. of F., Adverse Possession, Proof 1 et seq.; 39 P. of F.2d 261.) The title so acquired is absolute. (C.C. 1007.) It is a new title, founded on the disseizin, and not the old estate of the former owner, although it is of the same nature and extent. (Williams v. Sutton (1872) 43 C. 65, 7.
Adverse possession differs from prescription, which relates to acquiring a right (such as an easement) after lapse of time, by use. (See Thomas v. England (1866) 71 C. 456, 458, 12 P. 491; Cleary v. Trimble (1964) 229 C.A.2d 1, 6, 39 C.R. 776, citing the text; 7 Cal. L. Rev. 65; 3 Cal. L. Rev. 415; 7 Powell § 1012; infra, § 462.) The Property Restatement (§ 221) uses the term statutory period to mean the time stated for the acquisition of an estate in land by adverse possession, and period of prescription as the time for acquiring easements and profits by prescription.
If you own property it is vital for you to visit it every few years and take enough time and trouble to make sure that no one is using the land in a way that might give rise to a claim of adverse possession. Bring a camera, and take pictures.
If you are thinking about making an adverse claim, be practical. Try to determine if there is something wrong with the property that may make it a liability rather than an asset. There may be a very good reason it is not being used. See our true story on that topic, Getting the Land for Free Was Not Free.
Most adverse possession stems from adjoining property holders who simply move their fences and use to take over your plot. While squatters can occur and used to be the main source of adverse possession when the West was largely uninhabited, such claims now normally stem from differences over boundary lines which result in one claimant simply beginning to use in an obvious manner (and pay taxes) on the adjacent lot and if five years passes, the dispute is over since adverse possession has occurred.
If someone is paying your taxes you have problems. If you do not know your own boundaries and see someone apparently on your land, you may have problems.
And this is not a problem that goes away. To protect your rights to your land, you must take immediate aggressive action. Seek legal advice to determine what appropriate steps to take.. Remember, protect it or you can lose it entirely in five years. And remember the old adage, "Possession is nine-tenths of the law." In the case of adverse possession, it is literally the case.
Other states have different periods and criteria for adverse possession. The above article applies to California only.